New rules restricting access to welfare benefits for new EU migrants including a six month statutory presumption for benefits paid to jobseekers.

In this post Garden Court Chambers barrister Desmond Rutledge looks at how we got here, what are the new rules and what might follow next.

History

On 27 November 2013, Prime Minister David Cameron announced a number of measures designed to ensure that “no-one can come to this country and expect to get out-of-work benefits immediately” – see EU migrants: David Cameron sets out more benefit restrictions.

On 13 December 2013, the Government announced the introduction of a new, ‘improved’ habitual residence test – see the DWP press release.

On 18 December 2013, the Prime Minister announced that from 1 January 2014 all EU jobseekers will have to wait for 3 months before they can apply for out of work benefits.

These changes were widely seen as the Government’s attempt to rush through a block on EU migrants’ access to benefits in response to the politically sensitive lifting of the restrictions on Romanians and Bulgarians working in the UK from 1 January 2014 – see Tories rush through curbs on benefits access for Romanians and Bulgarians.

Amendments to the legislation

All this has resulted in the following amendments to the legislation affecting EU migrants’ access to benefits as jobseekers.

The Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013 (SI.No.3032/2013) which amends the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) introduces a 6 month statutory presumption for Jobseeker’s Allowance. The Regulations make changes with respect to the definitions of ‘jobseeker’ and ‘worker’ in the 2006 Regulations to the effect that: –

• EEA nationals seeking to reside in the UK while looking for work must provide, from the outset, evidence that they are seeking work and have a genuine chance of being engaged;
• EEA nationals seeking to enjoy the status of ‘retained worker’ – i.e. a worker who is involuntarily employed – – must provide, from the outset, evidence that they are seeking employment and have a genuine chance of being engaged; and
• EEA nationals may not enjoy the status of jobseeker or retained worker for longer than six months unless they provide ‘compelling evidence’ that they have a genuine chance of being engaged;
• There will be an absolute limit of six months for the retention of worker status for an EEA national who is a retained worker and who had worked for less than 12 months before becoming involuntarily unemployed.

The Jobseeker’s Allowance (Habitual Residence) Amendment Regulations 2013 (SI 2013/3196) provides that the requirement that migrant jobseekers (including UK nationals returning from a period living or working abroad) have been living in the UK (or the Common Travel Area) for 3 months. In other words, the habitual residence test cannot be satisfied unless the claimant has been living in the Common Travel Area for the past three months – in force from 1 January 2014.

The DWP has issued official guidance in DMG Memo 28/13: JSA(IB) – 3 months residence requirement.

Procedural changes to the habitual residence test

Under an “improved Habitual Residence Test” migrants will be required to answer more individually tailored questions, provide more detailed answers and submit more evidence before they will be allowed to make a claim.

• Staff conducting the interviews will be able to draw from a bank of more than 200 questions; twice as many as were previously available.

• The claimant will be required to provide more comprehensive evidence of their circumstances at the point of claim which might include what measures they have taken to establish themselves in the UK by looking at their housing and family situation or by looking at what ties they still have abroad. They will also have to provide more evidence that they are doing everything they can to find a job.

• For the first time, officials will ask claimants whether their language skills make it less likely that they would get a job in the EU, and whether this could be a barrier to them finding actual employment; they will also be asked about the efforts they have made to find work before coming to the UK.

Further restrictions in the pipeline

Other changes intended to restrict EEA migrants’ access to benefit which are due to come in over the next year include:

• introducing a new minimum earnings threshold before benefits such as income support can be claimed (to check whether someone has a job or is self employed in order to access benefits);
• imposing a 12 month re-entry ban for people who have been removed for not working or being self-sufficient;
• any EU national sleeping rough or begging will be deported and barred from re-entry for 12 months ‘unless they can prove they have a proper reason to be here, such as a job’;
• ensuring that new EEA jobseekers will be unable to access Housing Benefit.

More information

Directive 2004/38/EC provides that EU citizens have a right to reside in another member state for an initial period of three months under Article 6 but it has been left to the host Member State to decide whether it will grant social assistance during the first three months of residence (recital 21).

According to EU case-law, an EEA national seeking work will have a right to reside for an initial period of six months but the period can be for longer if the EEA national can show that they are genuinely seeking work and have a reasonable chance of being engaged (Case C-292/89 R v Immigration Appeal Tribunal, ex p Antonissen [1991] ECR 1-7450, Directive 2004/38/EC, Art 7(3)(b)–(c)). In AG and Ors (EEA-jobseeker-self-sufficient person-proof) German [2007] UKAIT 00075, the Upper Tribunal held that the six months’ period is a general rule of thumb and that there is no fixed time limit (para 49). Former workers who have actually worked in the UK for at least a year (Directive 2004/38/EC, Article 7(3)(i)) retain the status of worker as a work seeker indefinitely, subject to being registered as a jobseeker (CIS/0601/2008 [2009] UKUT 35 (AAC), para 22). They are not subject to the additional condition imposed after six months on those who have worked for less than 1 year.

Regulations restricting the right of Bulgarian and Romanian nationals (‘A2 nationals’) to work in the UK ceased to apply from 1 January 2014. This change is given effect by the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013 (SI 2013/3032). Subject to transitional rules, this means that, from 1 January 2014, A2 nationals will have the same EU rights to reside in the UK as any other EEA national. See also the official guidance in DMG Memo 27/13: Nationals – ending of restriction on right to reside.

Lastly, in a report published on 23 December 2013 – In transition: Romanian and Bulgarian migration to the UK – the Institute for Public Policy Research says whilst temporary restrictions on the working rights of Romanian and Bulgarian citizens in the UK will be lifted in January 2014, it is likely that patterns of migration from Romania and Bulgaria will be different to those seen after the A8 countries joined the EU in 2004.